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Morris v. Colvin

United States District Court, D. Delaware

February 26, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

Page 361

Karen Y. Vicks, Esquire of Law Office of Karen Y. Vicks, LLC. Counsel for Plaintiff.

Charles M. Oberly III, United States Attorney, Wilmington, Delaware and Heather Benderson, Special Assistant United States Attorney, Office of the General Counsel Social Security Administration. Of Nora Koch, Esquire, Acting Regional Chief Counsel, Region III and Maija DiDomenico, Esquire, Assistant Regional Counsel of the Office of the General Counsel Social Security Administration, Philadelphia, Pennsylvania. Counsel for Defendant.


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Sue L. Robinson, District Judge.


Alonzo Morris (" plaintiff" ) appeals from a decision of Carolyn W. Colvin, Acting Commissioner of Social Security (" defendant" ), denying his application for Disability Insurance Benefits (" DIB" ) and supplemental security income (SSI) under Title II of the Social Security Act (the " Act" ), 42 U.S.C. § § 401-434, 1381-1383f. The court

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has jurisdiction pursuant to 42 U.S.C. § 405(g).[1]

Currently before the court are the parties' cross-motions for summary judgment. (D.I. 15, 20) For the reasons set forth below, plaintiff's motion will be denied and defendant's motion will be granted.


A. Procedural History

Plaintiff filed applications for DIB and SSI on March 8, 2002,[2] alleging disability beginning on March 18, 2001,[3] due to " bipolar disorder, attention deficit disorder inattentive type, arthritis left hip." (D.I. 15 at 46, 534-36, 673) On November 21, 2006, after a hearing on August 23, 2006 (" the 2006 hearing" ), the ALJ issued a partially favorable decision (" the 2006 decision" ), finding that plaintiff became disabled on April 17, 2006. ( Id. at 4-6, 14-21, 27-30) After an unsuccessful appeal to the Appeals Council ( id. at 4-6), plaintiff appealed to the United States District Court ( id. at 488-89), which remanded the case for further administrative proceedings ( id. at 490-512). After another hearing, the ALJ issued another partially favorable decision on May 28, 2010 (" the 2010 decision" ), finding that plaintiff was disabled from March 18, 2001 through November 1, 2003, and then again beginning on April 17, 2006.[4] ( Id. at 581-96)

Plaintiff again appealed. The Appeals Council vacated the 2010 decision and remanded the case for further review because the recording of the hearing could not be located. ( Id. at 472, 597-99) After a third administrative hearing, the ALJ issued another partially favorable decision on January 19, 2012 (" the 2012 decision" ),[5] finding again that plaintiff was disabled from March 18, 2001 through November 1, 2003, and then again beginning on April 17, 2006. ( Id. at 472-87) Plaintiff unsuccessfully sought review by the Appeals Council. ( Id. at 450-53) On December 17, 2011, plaintiff filed the current action for review of the 2012 decision. (D.I. 15)

B. Medical History

1. Hip replacement

Plaintiff underwent a left total hip replacement on July 22, 2003 after a history of left hip osteoarthritis. (D.I. 15 at 207-08, 215-16, 313-18) On August 11, 2003, plaintiff's primary care physician, Domingo G. Aviado, M.D. (" Dr. Aviado" ), noted plaintiff was doing " fairly well" after his hip replacement. ( Id. at 200) On September 4, plaintiff complained to Dr. Aviado of " muscle spasm[s] especially in left leg," with pain in the " left calf, ankle and foot." ( Id. at 199) On September 10, 2003, at six weeks post-operative, plaintiff followed up with orthopedic specialist Wilson Choy,

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M.D. (" Dr. Choy" ). Treatment notes indicate that plaintiff reported he was " doing very well now and [was] pleased with the results." ( Id. at 206) Plaintiff was no longer taking Oxycontin, got up early in the morning to get dressed, and " [t]his [was] the best that he has felt in 10 years." ( Id. ) Dr. Choy observed " excellent" left hip range of motion, and left hip x-rays revealed a well fixed prosthesis. ( Id. ) Dr. Choy referred plaintiff to physical therapy, recommended aquatic therapy and exercises to work on plaintiff's iliopsoas muscles, prescribed Celebrex and Vicodin, and advised activity as tolerated. ( Id. )

On November 21, 2003, approximately four months post hip replacement, Dr. Choy's notes indicate that plaintiff was doing " very well," was no longer taking any narcotic pain medication, and was " walking well with no assistive device." Plaintiff had some pain in his left groin and walked with a " little limp." ( Id. at 205) Plaintiff had excellent passive hip range of motion, full leg extension, and no pain to the thigh or groin with knee strike. ( Id. ) Dr. Choy again recommended aquatic therapy, but prescribed no medications and advised activity as tolerated. ( Id. )

On January 14, 2004, plaintiff was doing " very well" and his tendinitis was improving. ( Id. at 302) An examination revealed " no pain at all" for passive left hip range of motion, no thigh or groin pain with knee strike, and some groin pain and tenderness along the iliopsoas tendon. The x-rays showed a well fixed femoral and acetabular implant in excellent alignment. ( Id. ) Dr. Choy recommended stretching the iiopsoas muscle with warm compresses, did not prescribe any medication and advised activity as tolerated. ( Id. )

On March 16, 2004, plaintiff consulted Dr. Aviado for a cold and cough. Dr. Aviado noted that plaintiff " [s]till [had] difficulty ambulating with [l]eft hip" and plaintiff requested that Dr. Aviado complete a state disability form. ( Id. at 195) Dr. Aviado indicated on the disability form that plaintiff had left hip surgery in 2003 and was unable to work because of " hip arthritis, asthma, and [hypertension]." ( Id. at 204) Plaintiff consulted Dr. Aviado for other medical issues on April 12, 2004, May 3, 2004, and June 29, 2004, and did not complain of issues or pain with his hips. ( Id. at 192-95)

On June 30, 2004, Dr. Choy noted plaintiff was doing " very well," and his groin pain was " much improved." ( Id. at 300) Plaintiff was able to achieve full leg extension and had " no pain at all to the thigh or groin with knee strike." ( Id. ) Plaintiff's x-rays revealed " excellent" ingrowth of the left hip prosthesis. ( Id. ) Dr. Choy prescribed no medications, advised that no further intervention was required, and recommended a follow-up in one year. ( Id. )

On January 12, 2005, plaintiff reported " excruciating" hip pain at the Veterans Affairs Medical Center (VA). ( Id. at 401) Treatment notes indicate the pain was actually in the lower back and plaintiff had shooting pain down the back of his leg. ( Id. ) On physical examination, plaintiff exhibited pain in his left groin, low back, and leg when performing a straight leg raise. ( Id. at 402) The physician ordered x-rays. ( Id. )

On March 29, 2005, state agency physician Vinad Katareo, M.D. (" Dr. Katareo" ) reviewed the record and opined that plaintiff retained the ability to lift and carry 20 pounds occasionally and 10 pounds frequently; stand and/or walk for about six hours and sit for about six hours during an eight-hour workday; push and pull consistent with his lifting and carrying abilities, except for the operation of foot controls with his left leg; occasionally climb, balance, stoop, kneel, crouch, and crawl; and avoid concentrated exposure to extreme

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cold, vibration, pulmonary irritants, and hazards. ( Id. at 364-71) According to his Function Report form completed on March 8, 2005, plaintiff prepared frozen meals, cared for his personal needs, drove, rode in a car, walked (but " not far" ), used public transportation, shopped in stores, spent time with others, and did not use a cane or other assistive device. ( Id. at 82-88)

X-rays taken on August 11, 2005 revealed " [m]ild degenerative hypertrophic spurring involving all of the lumbar vertebral bodies," and an intact hip prosthesis with no evidence of loosening. ( Id. at 397-98) On that date, plaintiff was fitted for a straight cane. ( Id. at 391-92)

On October 24, 2005, during a VA visit, plaintiff reported a history of chronic low back pain for several years, which he treated with a heating pad, Tylenol, and balm. ( Id. at 387-88) Plaintiff did not do his back exercises, as he was afraid of hurting his back. ( Id. at 388) On physical examination, plaintiff had limited lumbar spine range of motion, but a negative straight leg raising test, full motor strength throughout, intact sensation, and symmetric reflexes. ( Id. ) Plaintiff was ambulating independently. ( Id. ) The VA physician provided instructions for simple back stretching exercises and ordered a back brace at plaintiff's request. ( Id. at 387-88)

On February 22, 2006, a lumbar spine CT scan revealed disc bulging at L3-4 and L4-5 with no focal disc herniation, mild bilateral facet joint degenerative changes from L3-4 through L5-S1, and no evidence of spinal stenosis. ( Id. at 381) On March 21, 2006, plaintiff was issued a cane. ( Id. at 377)

On November 12, 2009, Jay Freid, M.D. (" Dr. Freid" ) evaluated plaintiff at the request of the state agency. ( Id. at 564-76) Plaintiff reported that he had hip pain, but took no medications for it. ( Id. at 564) He continued to smoke a pack of cigarettes every two days despite his diagnosis of chronic obstructive pulmonary disease (" COPD" ). ( Id. ) On examination, plaintiff walked slowly without an assistive device and exhibited full (5/5) motor strength in his arms and legs, normal sensation in his legs, good range of motion in all joints and both hips, and only mild pain with left hip movement. ( Id. at 565) Dr. Freid noted that plaintiff seemed to be " subjectively limited with more physical activities." ( Id. ) Dr. Freid opined that plaintiff could lift and carry up to 20 pounds occasionally and 10 pounds frequently; sit for eight hours, stand for two hours, and walk for one hour during an eight-hour day, with additional postural and environmental restrictions; only occasionally reach with either arm; and should never perform postural activities, like balancing, kneeling, or stooping. ( Id. at 571-76)

2. Pulmonary issues

Plaintiff has a history of sinus issues. ( Id. at 192-201) Through June 2004, Dr. Aviado treated plaintiff for chronic sinusitis and prescribed medication, including a bronchodialator on March 16, 2004.[6] ( Id. at 192-201) Starting in October 2004, plaintiff received treatment for his sinusitis and pulmonary complaints either from another primary care physician or an Ear, Nose, and Throat specialist at the VA. ( Id. at 233-34, 250-51, 376-77, 379-84, 411) At various times, plaintiff was assessed with chronic smokers rhinosinusitis and COPD, prescribed medication and bronchodilator therapy, and advised to quit smoking. ( Id. at 376-77, 382, 402, 412) Physician notes indicate plaintiff smokes at least a half-pack of cigarettes daily. ( Id. at 233)

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Plaintiff participated in several smoking cessation programs, which were unsuccessful. ( Id. at 379 (indicating plaintiff failed to attend a smoking cessation visit), 400-01, 403, 409)

Plaintiff underwent several diagnostic studies during the relevant period. On October 29, 2003, x-rays of plaintiff's paranasal sinuses were negative. ( Id. at 213) On March 19, 2004, plaintiff underwent a pulmonary function study and Dr. Aviado diagnosed COPD. ( Id. at 211) On November 30, 2004, sinus x-rays revealed bilateral frontal and bilateral ethmoid sinusitis. ( Id. at 250, 252) On January 9, 2005 a pulmonary physician at the VA diagnosed plaintiff with mild obstructive airways disease after testing on December 17, 2004. ( Id. at 234) On March 23, 2006, a maxillofacial CT scan revealed mild to moderate thickening in plaintiff's sinuses. ( Id. at 378)

C. Administrative Hearing

1. Plaintiff's testimony

An administrative hearing was held on November 15, 2011. ( Id. at 702-03) Plaintiff appeared, represented by counsel. Plaintiff was born on April 17, 1951 and was sixty on the date of the hearing. ( Id. at 706) He is divorced and has adult children. ( Id. at 706, 716) He lives by himself and does housework when he is able. ( Id. at 713, 720-21) He has a driver's license, but does not drive a lot. ( Id. at 706-07) He completed ninth grade and obtained a GED. ( Id. at 707) He took some college courses (including asbestos courses) for two years at the ...

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